Citation Nr: 0108121
Decision Date: 03/20/01 Archive Date: 03/26/01
DOCKET NO. 00-09 967 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to a compensable evaluation for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michael A. Holincheck, Counsel
INTRODUCTION
The veteran served on active duty from June 1971 to September
1979. He had additional service in the Army National Guard
from October 1970 to June 1971 and from January 1980 to May
1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1999 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Paul, Minnesota.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. The veteran's bilateral hearing loss is manifested by
level II hearing in both ears.
CONCLUSION OF LAW
The criteria for a compensable rating for bilateral hearing
loss from June 1998 have not been met. 38 U.S.C.A. §§ 1155
(West 1991), (Veterans Claims Assistance Act (VCAA), Pub. L.
No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be
codified at 38 U.S.C. § 5107); 38 C.F.R. §§ 4.7, 4.85-4.87,
Diagnostic Code 6100 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
The veteran served on active duty from June 1971 to September
1979. He had additional service in the Army National Guard.
The veteran maintains that he served in artillery units
during service. He submitted his original claim for
disability compensation in June 1998.
In July 1998, the veteran submitted an audiometric record
listing the results of several audiograms conducted by his
employer for the period from September 1988 to August 1997.
The results did not depict any speech discrimination test
results. He also submitted a statement from his spouse. The
spouse related the many difficulties the veteran's hearing
impairment caused them in their home life.
The RO notified the veteran in October 1998 that his service
medical records (SMRs) and DD 214 were needed to support his
claim. He was advised to submit the requested items as soon
as possible if he had them. He was also informed of a toll-
free telephone number to call for any information or if he
had questions.
The RO submitted a request for military records to the
Adjutant General for the Army National Guard in St. Paul,
Minnesota, in October 1998. The only records received
related to the veteran's earlier period of service with the
National Guard in 1970-1971. Some SMRs were received from
the National Personnel Records Center in November 1998.
In October 1998, the veteran submitted a statement wherein he
indicated that he had no further evidence to submit in
support of his claim.
The veteran was afforded a VA audiology and otolaryngology
examination in June 1999. The results of the audiogram
revealed pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
20
30
45
LEFT
15
15
5
25
50
The average decibel loss was 28 in the right ear and 25 in
the left ear. Speech audiometry revealed speech recognition
ability of 88 percent in each ear. The examiner found that
it was at least as likely as not that the veteran's hearing
loss was related to exposure to acoustic trauma in service.
The veteran was granted service connection for bilateral
hearing loss in September 1999. The veteran was assigned a
noncompensable rating for his hearing loss. He was also
granted service connection for tinnitus and assigned a 10
percent disability rating.
He submitted his notice of disagreement with his hearing loss
disability rating in November 1999. He provided a copy of a
private audiogram, dated in November 1999. The veteran
stated that the private audiogram reported a 9 percent loss
in the right ear and 15 percent loss in the left ear and that
his disability rating from VA should be higher. He also
submitted a duplicate copy of the audiometric record provided
in July 1998.
The private audiogram had pure tone thresholds, in decibels,
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
35
20
40
45
LEFT
35
40
25
40
50
Speech audiometry scores were reported as 88 percent for the
right ear and 84 percent for the left ear. There is no
indication of what type of speech discrimination test was
used.
The veteran submitted no further evidence in support of his
claim and did not identify any other source of evidence that
could be obtained to support his claim.
II. Analysis
The Board has reviewed the record and finds that all relevant
evidence necessary for an equitable disposition of this claim
has been obtained, and there is no further development needed
to satisfy the duty to assist. Veterans Claims Assistance
Act (VCAA) of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat.
2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A).
A further discussion of the application of the VCAA is
contained later in this decision.
The veteran's claim for a higher evaluation for his bilateral
hearing loss is an original claim that was placed in
appellate status by a Notice of Disagreement (NOD) expressing
disagreement with an initial rating award. As such, separate
ratings can be assigned for separate periods of time based on
the facts found-a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119 (1999).
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1
(2000). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2000).
The Board notes that effective June 10, 1999, the VA revised
the criteria for evaluating Diseases of the Ear and Other
Sense Organs. 64 Fed. Reg. 25202-210 (1999); codified at
38 C.F.R. § 4.85 (2000). However, the changes in regulations
pertaining to evaluations for hearing loss were not
significant in regard to the veteran's disability rating.
The Board notes that the RO has not had a chance to evaluate
the veteran's claim under both the old and new rating
criteria. Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991) (where the law or regulations change while a case is
still pending, the version most favorable to the claimant
applies, absent congressional intent to the contrary).
However, as the changes made do not reflect any substantive
change in the evaluation of the veteran's disability, the
Board concludes that there is no prejudice to the veteran by
evaluating his hearing loss for the first time under both
sets of regulations. Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
As noted previously, regulations pertaining to rating
disabilities for hearing loss were amended effective June 10,
1999. However, the changes made for evaluating the level of
disability for hearing loss were not significant.
Previously, levels of impairment were evaluated under
Diagnostic Codes 6100-6110, with rising disability ratings
given a different diagnostic code. As a result of the
revision, only Diagnostic Code 6100 applies to all levels of
impairment.
Evaluations of defective hearing range from noncompensable to
100 percent. This is based on organic impairment of hearing
acuity as measured by the results of controlled speech
discrimination tests, together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. To
evaluate the degree of disability from service-connected
hearing loss, the rating schedule establishes eleven auditory
acuity levels ranging from numeric level I for essentially
normal acuity, through numeric level XI for profound
deafness. 38 C.F.R. § 4.87, Diagnostic Codes 6100 to 6110
(1998); 38 C.F.R. § 4.85, Diagnostic Code 6100, (2000).
A review of the audiometric record provided by the veteran
from his employer shows that it is not adequate for rating
purposes, as there are no speech discrimination test scores
reported. The evidence was considered by the RO as showing a
history of hearing loss dating back a number of years in
support of establishing service connection. Moreover, the
decibel loss recorded for the 1997 tests, for the pertinent
frequencies, is not as severe as that recorded on the
September 1999 VA examination. Therefore, these results, if
considered at this stage, would not result in a higher
disability rating for the veteran.
The results of the June 1999 VA audiometric study correlates
to level II hearing in each ear. See 38 C.F.R. § 4.85, Table
VI (1998); 38 C.F.R. § 4.85, Table VI (2000). The
combination of the two ears corresponds to a noncompensable
rating. See 38 C.F.R. § 4.87, Table VII, Diagnostic Code
6100 (1998); Table VII, Diagnostic Code 6100 (2000). The
assigned evaluation is determined by mechanically applying
the rating criteria to certified test results. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
In regard to the November 1999 private audiogram, even
conceding that the audiogram and speech discrimination
testing satisfies the necessary criteria under 38 C.F.R.
§ 4.85(a), the result is still the same. The veteran's
hearing loss correlates to a level II disability for each
year. In turn, this equates to a noncompensable rating.
Accordingly, there is no basis to establish a higher
disability rating for the veteran's bilateral hearing loss
from June 1998.
The veteran has argued that the private audiogram noted a 9
percent loss in the right ear and 15 percent loss in the left
ear as support for his contention that he should be afforded
a higher rating. However, those findings are labeled as
"AMA" findings and do not correlate to the Schedule for
Rating Disabilities as discussed above. Moreover, they are
not binding on VA for purposes of discussing level of
disability compensation. The Board is obligated to apply the
rating schedule as established. Lendenmann.
Finally, the Board finds that there is no basis for referral
for consideration of an extra-schedular rating in this case.
38 C.F.R. § 3.321(b)(1) (2000). Specifically, there is no
evidence of frequent hospitalization or marked interference
with employment that would suggest that the veteran is not
adequately compensated by the regular schedular standards.
See Bagwell v. Brown, 9 Vet. App. 337 (1996) (the Board is
not precluded from concluding that a claim does not meet the
criteria for submission to the Undersecretary for Benefits or
the Director of the Compensation and Pension Service pursuant
to 38 C.F.R. § 3.321(b)(1)). The veteran has not alleged any
interference with his employment and the July 1998 statement
from his spouse, offered to establish the existence of a
hearing loss in connection with the service connection aspect
of the claim, referred to problems encountered at home.
In regard to the VCAA, the Board notes that Karnas requires
consideration of whether a previous version, or the change in
law, is more favorable to the veteran. The VCAA represents a
codification of the duty to assist and provide notification
that is more favorable to the veteran.
At the time the veteran submitted his claim for service
connection attempts were made to obtain his SMRs. However,
only partial records were received. Still, the veteran was
granted service connection on the basis of the evidence of
record and the results of a VA examination. The lack of SMRs
in this case is of little consequence as the veteran last
served on active duty in 1979 and with the National Guard in
1993. The SMRs would not be dispositive as to the level of
disability as of June 1998. He disputed the disability level
assigned in September 1999 and was provided a statement of
the case in December 1999 that gave a complete description of
the applicable regulations, to include graphic reproduction
of the tables used in rating hearing loss disabilities. He
was put on notice of what was necessary to satisfy the
criteria for a compensable disability rating.
The Board notes that the veteran did not appoint a
representative until April 2000, at the time he submitted his
substantive appeal. The representative was afforded the
opportunity to submit a VA Form 646 in support of the
veteran's claim. The representative was notified of the
certification of the case on appeal in July 2000 and afforded
the opportunity to submit additional comments in December
2000.
Upon review of the claims file, the Board is satisfied that
the veteran was provided full assistance in the development
of his claim and notice of VA actions as contemplated under
the VCAA. Accordingly, there is no basis to remand the case
to the RO. The Board has also considered possible prejudice
to the veteran under Bernard by the Board's review under the
VCAA in the first instance. However, the Board finds that
there is no prejudice to the veteran by the Board's actions.
As noted before, the RO provided the veteran with essentially
the development required by the VCAA. The veteran has not
alleged that there is any outstanding evidence that would
demonstrate that he satisfies the criteria for a higher
rating. Rather, he contends his hearing loss is more severe
than is reflected by his current disability rating. The
veteran has been made aware of the criteria to obtain a
higher disability rating for his hearing loss. Indeed, he
submitted a private audiogram after his June 1999 VA
examination, which did reflect a more severe hearing loss.
However, the evidence still does not satisfy the schedular
criteria for a higher rating.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.
Therefore, the Board is unable to identify a reasonable basis
for granting a higher rating for the veteran's bilateral
hearing loss from June 1998. Gilbert v. Derwinski, 1 Vet.
App. 49, 57-58 (1990); VCAA, § 4, (to be codified as amended
at 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102 (2000).
ORDER
Entitlement to a compensable disability evaluation for
bilateral hearing loss is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals